Oregon State Bar Bulletin  OCTOBER 2012

That question is fascinating when you are reading the ad for the current remake of the sci-fi adventure film, “Total Recall.” But it’s simply frustrating when you are contemplating filing a criminal, civil or administrative case based largely on eyewitness testimony. Or defending the actions of a police officer who can’t recall details of a deadly force encounter.

No wonder human memory has been the topic of much discussion in law-related circles this year.

In April, a national institute came to Hillsboro to study memory as it affects police officers’ perception of potentially deadly traffic stops. In May, Oregonian columnist Steve Duin highlighted a Douglas County case — now under consideration by the Oregon Supreme Court — in which aggravated murder and other convictions resulting from a terrifying stranger-to-stranger attack were based largely on inconsistent eyewitness information. And currently, statewide law-enforcement and judicial committees are wrestling with best practices for such identifications.

While the validity of memory-based testimony also is crucial to civil and administrative cases, the interest in the topic undoubtedly has been driven by The Innocence Project’s use of DNA evidence to exonerate convicted persons nationwide. (Lawyers for the project, including Matthew McHenry of Portland, filed a 62-page amicus brief in the Supreme Court case referred to above, State v.Lawson, 239 Or. App. 363 (2010), Supreme Court Case No. S059234.)

“Beyond that,” continues Reisberg, who testified as a memory expert for the defense in the Lawson case, “the legal profession
is just figuring out all of the various ways memory might be relevant to it. It obviously goes far beyond ‘That’s the man who robbed me.’ ”

“Researchers are not trying to persuade everyone that memories are flawed,” Reisberg concludes. “They are extraordinarily good at providing the kind of information we usually need in day-to-day life. But that turns out to be different than what courts need. Courts often are asking memories to function in ways they didn’t evolve for. The problem is not with the courts or the memories: It’s with the potential mismatch between the two.”

How Memory Works
One unfortunate thing about human memory is that even some of the things we remember hearing about it are wrong.

“One of the top 10 myths about memory is that it is a video or tape recording,” says Bob Stanulis, a Portland-based forensic- and neuropsychologist. “It is not.”

In fact, this myth is discounted by the first of four “key properties” of human memory identified in a fascinating and easily readable report, “Guidelines on Memory and the Law,” published by the British Psychological Society in 2008:

• Memory is a record of a person’s experience of reality. It is not a record of reality itself (as, for example, a video might be). …[a]n experience, and a memory of it, always contains elements…that originate from the experiencing person’s own mind rather than from reality.

• Memories are samples of experience. They are never a complete record of an experience.

• [M]emory is not only about particular experienced events (episodic memories), but also includes more general autobiographic knowledge (schools, occupations, holidays, friends, homes, achievements, failures, etc.) … memories may be wrong with regard to precise details and yet accurate with regard to more general contextual information.

• Memories are … a part of “now.” Memories are part of the cognitive, emotional, physical, social, cultural, historical and belief context in which they are recalled, with all that entails.

What does this mean for us as lawyers and judges?

“The weight of science is not to push us towards a wholesale discounting of memory,” Reisberg says reassuringly. “Instead, there are a small number of factors that can have a surprising amount of power to pull memory off track.”

“In legal cases,” says the British report, which discusses those factors in detail, “memory may feature prominently as the main or as the only source of evidence. In such cases, evaluating accounts put forward as memories is nearly always critical to the course and outcome of the case or litigation.”

The problem, the report continues, is that “[t]he law generally is unaware of the findings from the scientific study of human memory. Consequently, courts and hearings typically cannot take advantage of these findings and use them to inform their decision making.”

“Currently,” the report explains, “the main way to deal with this problem, when a court/hearing acknowledges it as a problem, is to seek the advice of an expert.”

“Another … solution is to deny that the court/hearing needs any expert advice on issues relating to memory. The argument here is that as the jurors all have memories, they know enough about memory from the experience of their own memories to make reliable evaluations of accounts put forward as memories. Thus, the argument goes, evaluating a memory is a ‘jury matter.’ ”

The Law in Oregon
In Oregon, jurors generally are allowed to hear witnesses testify about matters about which the witnesses have personal knowledge. Oregon Rules of Evidence (OREs) 601 and 602. And jurors in both civil and criminal cases are instructed that one witness, whom they believe, is sufficient to prove any fact at issue.

In Oregon, as in Great Britain, whether to allow an expert on memory to testify is up to the court. OREs 702 and 704.

“I have had a case where Dr. Reisberg’s testimony was offered as opinion evidence in a rape case,” says Wasco County District Attorney Eric Nisley. “The judge disallowed it in my case, but other judges have allowed him to testify.”

“I have never called a witness as an expert on memory myself,” Nisley says, “[because] there are 12 of them sitting in the jury box. Someone testifying that ‘memory can be false’ seems to be akin to saying that most people have noses on their faces. I think jurors consider it insulting to their intelligence. I also think it is a comment on the credibility of witnesses and should not be allowed.”

One constitutionally based, case-law exception to the admissibility of witness testimony is eyewitness identification of the defendant in a criminal case under certain circumstances, even if a memory expert is allowed to testify.

In State v. Classen , 285 Or 221 (1979), and subsequent cases, Oregon’s appellate courts laid out a framework for determining whether a witness should be barred from making such an in-court identification:

1. Was the original, out-of-court identification suggestive? (An identification is unduly suggestive if it unfairly singles out or points to the defendant as the suspect to be identified.)

2. If so, has the state proven an independent source of
reliability?

Pertinent to the second question, the court said in Classen , is the following nonexhaustive list of factors:

• The opportunity the witness had to get a clear view of the person and the attention paid to his identifying features;

• the timing and completeness of the witness’ description after the event;

• the certainty expressed by the witness in that description and in making the subsequent identification; and

• the lapse of time between the original observation and the subsequent identification.

The tension between the court’s role as gatekeeper of such evidence and the jury’s role as fact-finder was evident in the Lawson case when Corvallis defense attorney Peter Fahy told Douglas County Circuit Court Judge Ronald Poole that the surviving victim of a nighttime campground attack should not be allowed to identify the defendant before the jury.

“These statements are the poster child for unreliability on their face,” said Fahy. “They evolved and developed as she [the victim/witness] was on the witness stand. You have no idea what this woman will say if she does take the stand in front of the jury.”

“Are you asking me to weigh the believability of her testimony?” Poole asked. “And isn’t that the job of the 12 people over there?”

“No,” Fahy said. “It’s the court’s job to be the gatekeeper on a confrontational issue.”

I Spy With My Own Little Eye
As Reisberg knows from personal experience, the Lawson trial represents the typical memory-expert court experience: testifying on behalf of the defendant in a criminal trial.

“To some extent, how the material on memory has been received by the justice system has evolved,” he says. “For better or worse, it’s more often been defenders who have used it. There continues to be antagonism by prosecutors. I’m not sure that bias is justified, but unfortunately, that’s the fact we’re faced with.”

“All of this is simply on the issue of IDs,” he continues.” I hope it’s totally clear that ID is only one of the ways that memory influences the legal system.”

“Memory issues are very germane to civil cases,” says Stanulis. “A few years back, I did a CLE for the Lane County bar and used all civil examples instead of criminal.”

For example, says Stanulis, “In a civil sex-abuse case, sometimes all there is is a 50- or 60-year-old plaintiff accusing his parents, a priest, etc.”

Reisberg says that “on the civil side, the kind of example that comes to mind is malpractice, where the patient says, ‘You never told me to check back with you,’ and the physician says, ‘Good heavens, I certainly told you that.’ ”

In addition, he says, civil proceedings, such as professional licensing and other administrative hearings, “often hinge on whether information, such as stock information, was given before or after an event, such as a stock trade.”

“There was a flurry of litigation concerning Flir Systems,” says Reisberg, referring to the Portland-based company that last year agreed to pay $39 million to settle claims arising from its business transactions. “There were lots of discussions regarding who was present at business meetings.”

“The notion of who was there and what was said obviously is going to be crucial in many cases,” he concludes, noting, “It’s important to ask not just whether someone was present but what they were paying attention to.”

In addition, says Stanulis, it’s important how these questions are asked.

“Memory can be changed by a single word,” he says, such as when “asking about the car smashing into another car versus hitting another car. When you think about that in terms of civil litigation, that’s pretty important.”

“We have a lot of information about how to interview people concerning alleged sex-abuse,” Stanulis continues. “But how do you get other information from people that’s reliable?”

“What is the source of the memory?” he asks. “Is it the person’s experience or a logical deduction? If people don’t have a memory, they tend to fill it in and that becomes ‘it happened that way.’ For example, a person may see a video of his wedding and that may be added to the person’s memory.”

“He Fired First”
You likely have never heard of the Mankato, Minn.- and Chicago-based Force Science Institute (FSI).

But if you were a police department training officer, you’d be killing yourself (so to speak) trying to get its professionals to come and work with your department.

In April, Sgt. Craig Allen of the Hillsboro Police Department and other police officers in Oregon and Washington got exactly that.

“Everybody in the world wants Force Science to come and work with them,” says Allen, whose department has participated in two FSI studies, one of them April’s Traffic Stop Study, as well as three classes.

FSI founder and police psychologist Bill Lewinski says the Traffic Stop Study had multiple research objectives, one of which was “the ability of officers to report on what they just engaged in.”

“It was a chance to test two types of memory,” he says, “episodic and automatic. ‘Automatic’ is stuff that just happens. We do it all the time, but police officers very often are held accountable for things they do automatically.”

Allen says that the participants, 96 officers from 20 departments, included everyone “from recruit to detective to undercover narcotics officer to commanders, trainers and SWAT team members.”

Participating officers, including Allen, made three traffic stops of a vehicle driven by FSI’s vice president of operations. In one of those stops, the driver pulled a gun on and exchanged shots with officers. The officers were asked to write down everything they could remember about that stop and then were shown videotape of it.

“Numerous officers were surprised,” says Allen, by discrepancies between their memories and the videotapes. (First “key property” of memory: It is a record of a person’s experience of reality. It is not a record of reality itself.)

Allen says that the “interesting thing with stress and memory is that in some cases stress can improve memory. A little stress can improve it. A lot of stress does not.”

Lewinski explains that “the effect of stress is to narrow attention and perception down to a small number of things.”

“A stress situation is usually very dynamic,” he says. “You have a very narrow visual focus: you exclude much information that people normally are aware of.”

“Many firearms instructors ask us how they can broaden officers’ attention, make them remember more,” he says. “That’s not a good idea. In baseball, you keep your eye on the ball. We would never think of broadening the players’ attention in baseball. In a gunfight, an officer’s attention needs to stay focused on what’s happening to him.”

Lewinski says that for the Traffic Stop Study, “One of the first things we had to do was figure out a way to do this empirically, comparing the path of travel the officer remembers taking versus what the video shows the officer taking.”

While this data has not yet been fully analyzed, he says its broad conclusion is that the officers’ memories were “generally accurate, meaning that they remembered being on the same side of the vehicle the video showed them as being on.”

“The exact path of travel is extremely difficult for most officers to remember if they were not paying attention to it,” he says. “So they construct memories, or make it up — I’m not being pejorative — based on their best estimates of what they were doing at the time. They’re close, but so far no one has been exact.”

For Allen, the fascinating thing about the study’s apparent findings is that “this huge, diverse population of officers, at the core, all performed similarly.”

“Because we’re a biological creature,” he says, “when we come into survival stress we tend to focus very clearly on what threatens us. All the other stuff falls by the wayside. It poses the question: if we are pre-wired to act in certain ways, can our actions be affected by training? This is an area that needs to continue to be explored in a scientific fashion.”

“I’ll Remember You”Oregonian columnist Steve Duin is, as he tells the OSB Bulletin candidly, “a fan of the death penalty.”

So it may have come as a surprise to his readers when, between June 2011 and May 2012, he devoted five columns to passionately advocating for convicted murderer Samuel Adam Lawson.

In 2005, Lawson was convicted of fatally shooting Noris Hilde and severely injuring Hilde’s wife, Sheryl, in a 2003 attack in an otherwise empty Douglas County campground. At trial, the judge allowed Sheryl Hilde to identify Lawson as the stranger who had been present in the campground earlier that day and had returned after dark.

In December 2010, the Oregon Court of Appeals, by a 2-to-1 vote, affirmed the convictions, and the Oregon Supreme Court subsequently accepted Lawson’s petition for review. Oral argument was heard Nov. 14, 2011; as of the time this article went to press, the decision had not been announced.

Duin, who in May 2012 reported that he had been “eavesdropping” on Lawson’s case for three years, says he got interested in it after one of the defense attorneys talked to Oregonian managing editor Therese Bottomly.

“‘This case is absolutely fascinating,’ ” he quotes that lawyer as telling Bottomly. “ ‘You have to take a look at it.’ ”

Duin, who read the entire, 4,000-page trial transcript, says, “What slowed me down was the defense team wouldn’t let me talk to him [Lawson].”

“I wanted to have a better sense of whether he was innocent before I invested so much of my time in it,” says Duin, who wrote an initial column when The Innocence Project filed its amicus brief in June 2011, a second column after oral argument and three back-to-back columns this May.

“I’ve never talked to Lawson,” he tells the Bulletin . “I have no idea if he is innocent. I wish I knew more than I do. I clearly think there is a heck of a lot of reasonable doubt.”

During their investigation, the police showed Sheryl Hilde two photo throw-downs (the procedure of assembling photographs and showing them to the witness) containing Lawson’s picture: the first two days after the shooting, the second a month later. She was unable to identify him either time due to, she told the jury, her very serious medical condition at the time.

Two years later, she identified Lawson in court before that jury.

But between her initial verbal descriptions of her assailant and the photo throw-downs, and her in-court identification, a number of events occurred that drove the defendant’s motion to strike that ID and his subsequent appeal.

First, a detective told Sheryl Hilde that “the man you’ve identified (verbally) is the person that we have in custody.”

Second, she saw a newspaper photograph of the defendant which identified him as the person in custody.

Third, a detective showed her a single photograph of the defendant, taken the day after the shooting, which she was able to identify.

Fourth, that detective arranged for her to view the in-custody defendant at a pretrial hearing.

And fifth, she inadvertently came across one of the original photo throw-downs during pretrial preparation, from which she — this time — was able to pick the defendant.

On review, the relevant issues before the Oregon Supreme Court were:

1. Did the Court of Appeals err in concluding that the state had met its burden, under Classen , of proving that her eyewitness identification, obtained through “concededly” suggestive procedures, was nonetheless independently reliable?

2. Was that court correct in suggesting that any error in admitting eyewitness testimony in suggestive-identification cases can be cured at trial by cross-examination, expert testimony, closing arguments and jury instructions?

3. Did the state’s failure to disclose to the defense that Sheryl Hilde had been shown a single photograph of the defendant before trial, and brought to a pretrial hearing to see him, violate his state and federal constitutional rights?

Portland criminal defense attorney Ryan Scott, who has written about eyewitness identification for the online Library of Defense, says that he’s willing to make two predictions about the Oregon Supreme Court’s decision.

“One, the court will explain the difference between state and federal law on this question,” he says. (In January, the U.S. Supreme Court held that the trial court’s gatekeeper function, with regard to excluding certain eyewitness identifications, is limited to cases in which the suggestive circumstances were arranged by law-enforcement officers. Perry v. New Hampshire , 132 S. Ct. 716.)

“Two,” says Scott, “ Classen said that as a factor, you can look at how certain the witness was. I think they’re going to get rid of that factor. All of the research shows it’s exactly the opposite.”

“Why isn’t cross-examination good enough to protect against bad eyewitness identifications?” Scott asks. “Why do we have to keep the evidence from the jury altogether? Part of the reason is, the witness — often a victim — believes he or she is telling the truth. Some of the most heartbreaking stories involve women who have been raped, who identify their accusers and who find out later, because of DNA, that they identified the wrong person. It is gut-wrenching when you read how these women feel. But you can also imagine that — before the DNA evidence came out — at the time of the trial, how cross-examination would have been close to useless when a woman, who is not lying, who is 100 percent certain, says, ‘That is the man who raped me’ and points at the defendant.”

Getting This Right
Multnomah County Chief Deputy District Attorney Rod Underhill (who will become district attorney Jan. 7, 2013), has testified before the Oregon House Judiciary Committee and been involved with a law-enforcement committee, both looking at the issue of eyewitness identifications, says, “Investigators/prosecutors/courts have the same goal as the general public: to be able to assess a witness’ true recollection and to be in compliance with state and federal constitutional guidelines.”

“We are completely motivated to get this right,” says Underhill, who prosecuted a case, currently on appeal, in which in-court eyewitness identification is an issue. (Ryan Scott, coincidentally, represents the defendant on the appeal.)

But, says Underhill, there are issues to be resolved.

“It’s accurate to say that what would work in Multnomah County may not work in, say, Morrow County,” he says.

As an example, he cites the idea of having photo throw-downs presented to witnesses by investigators who have nothing to do with the case to avoid even inadvertent influencing of their identifications.

“I work in fraud, you work in sexual assault, we do each other’s photo throw-downs,” he explains. “While that may or may not be a good idea, one of the things that has to be looked at critically is resources. Multnomah County has access to more resources, versus a county in Eastern Oregon that may have only one or two detectives.”

Memory expert Reisberg says there are other, less personnel-intensive ways to achieve uninfluenced identifications, such as by having a witness review a stack of shuffled envelopes, each containing a single photograph, outside of the investigator’s line-of-sight. “In that way, he says, the investigator is isolated from the ID procedure and cannot influence it.”

Underhill says the law-enforcement committee on which he serves has developed nonmandatory “best practices” for eyewitness-identification procedures that currently are being vetted by key law-enforcement stakeholders.

The bottom line, he says, is that there is “much more common ground between law enforcement, science and the defense bar than there are schisms.”

Memory expert Reisberg believes there are two things that could have a “huge impact” on future eyewitness identifications in Oregon.

“One is the Lawson case,” he says. “One of the options in front of the court is to rewrite the rules.”

The other is possible legislation.

Reisberg describes a meeting, called by the legal adviser to Oregon’s two legislative judiciary committees, at which both he and Underhill testified.

“What was quite wonderful,” he says, “and quite remarkable, is that all the speakers from the law enforcement and defense sides were singing the same song about what we want to achieve. It was an amazing session.”

At the end of the day, Reisberg concludes, “I’m not confused about the fact that I’m a college professor and not a professional witness. We [memory experts like himself] would rather work on training. We want to help the justice system get these things right in the first place.”

ABOUT THE AUTHORJanine Robben has been a member of the Oregon State Bar since 1980. She is a frequent contributor to the Bulletin.